I think I know judicial activism when I see it. I've seen plenty of it in my day. I’m not going to list off the decisions that I believe involved judicial activism, that’s not my point in writing just now. Rather, what I’d like to do in this entry is to explain why Citizens United v. FEC, the recent United States Supreme Court decision that struck down the federal law prohibiting unions and corporations (both for-profit and non-profit) from engaging in “electioneering communications”, does not involve activism. Then second, in a later entry I’d like to explain why the decision is sound from a First Amendment free speech standpoint.

But first, the claim that the decision is a brazen example of judicial activism. Just exactly what is judicial activism? Well, the term appears to have no set definition, but it does have various straight forward commonly understood connotations. The commonly held view holds that judicial activism has occurred when a court: decides a case based upon personal or political considerations rather than established law; or decides a case by interpreting a constitutional provision contrary to its plain text or the clear intent of its drafters; or engages in freewheeling social or public policy making rather than simply preserving the democratic political process; or decides an issue in such a way as to improperly shut down the involvement of other government branches (or the People) on an issue.

Often, although not always, judicial activism (or judicial overreaching) involves the Court striking down an act of the executive or legislative branches. But, striking down an act of another government branch alone is not activism – that’s simply judicial review, what Alexander Hamilton tells us in Federalist No. 78 is part of the judiciary’s design. And sometimes, but again not always, judicial activism involves the Court reversing its own direction, and thus one of it’s earlier decisions on an issue. But again, the Court reversing direction alone is not activism – sometimes that’s just necessary to get the issue right – believe it or not judges sometimes make mistakes (think Brown v. Board of Education, a decision that outlawed racial segregation in public education and in doing so reversed an earlier 50 year old, really bad, and wrong decision, Plessy v. Ferguson that allowed racial segregation as long as it was “separate but equal”).

Activism is often associated with the Court injecting a new right into the Constitution, one not found directly or logically supported in the document’s text. Activism is also associated with the Court reaching out to decide a Constitutional question when a reasonable interpretation of a statute might avoid the need to address the Constitutional issue altogether. And, last but not least, activism is often associated with the Court formulating a Constitutional rule in a much broader manner than is actually necessary to resolve the case at hand. Ironically, on these last two scores the famous Marbury v. Madison decision, a decision that first recognized the doctrine of judicial review, was a classic example of judicial activism because the Court did not need to reach the question of judicial review in order to resolve the case – but Chief Justice John Marshall did so anyway, and the rest is history.

The distinction between judicial activism and simple judicial review is often fine, but it should be universally understood that a Court does not engage in activism when it simply enforces either the plain text or logical meaning of a constitutional provision, or the meaning that was clearly given to the provision by those who wrote it. With all of this in mind, the Supreme Court’s decision in Citizens United is anything but judicial activism. Rather, the Court’s decision is a classic example of conservative originalistic constitutional interpretation.

The Court began with the text of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Unlike other provisions in the Bill of Rights and the Fourteenth Amendment, which specifically tie their application to “the people” or “person[s]” or “the accused” etc., the focus of the Free Speech Clause is “speech” not the individual “speaker.” It is “speech” that is not to be abridged, not certain types of “speakers.”

As Justice Scalia correctly points out in his concurring opinion, the Amendment’s “text offers no foothold for excluding any category of speaker” – corporation, association, or otherwise. Agree with the reasoning or not, but respecting the fact that the Founders of our Constitution chose not to write either a limitation to individual persons or a corporate exclusion into the First Amendment, is not activism – that’s just plain old conservative textualism. A conservative approach to Constitutional interpretation starts with the premise that the Founders knew what they were doing when they did not write the Amendment to say “freedom of speech” “except for associations of persons in corporations, etc.”

Justice Stevens’ attempt to demonstrate that the Founders had a disaffection for corporations rings hollow in light of the simple fact that the Founders did not write the Free Speech Clause to focus upon speakers, and did not exclude any form for the collective grouping of individuals from the protected freedom of expression. And, Justice Stevens’ opinion is devoid of any statements by the Founders to support the notion that they thought it acceptable that the speech of many individuals in any collective form be censored by government.

By contrast, however, there is ample evidence that the Founders believed that the Free Speech Clause protected the right of individuals to speak collectively in other legal entities that, as Justice Scalia explains, “have more in common with modern business corporations that the founding-era corporations” – “religious, educational, and literary corporations were all incorporated at the time under general incorporation statutes, much as business corporations are today.” And, what of colleges, towns and cities, religious institutions, and guilds. To accept the idea that the First Amendment does not protect collective groupings of individuals in corporations would lead to the incongruous conclusion that “all of these [were] silently excluded from the protections of the First Amendment.”

Even Justice Stevens and his dissenting colleagues recognized that history reflects that the Founders believed that the freedom of the press always covered corporations from the outset. From a textual and historical standpoint there is no reasonable basis for concluding that “Congress shall make no law . . . abridging the freedom of speech, or of the press”, means that groupings of individuals into corporations are protected under the Free Press provision, but not under the Free Speech provision.

As Chief Justice Roberts correctly recognizes, “[j]udging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that th[e] Court is called upon to perform” . . . “because the stakes are so high. . . .” But, as he states, “[i]t should go without saying . . . that [the Court] cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” “There is a difference between judicial restraint and judicial abdication.” The Court's first and foremost duty is to get the issue right consistent with the text and history of the Constitution.

Staying true to a restrained approach, the Court meticulously analyzed whether it was possible to interpret the statute in a way that would have allowed Citizens United to engage in their desired speech in this particular case, and thus to have allowed the Court to avoid the greater constitutional question. But, by honoring the plain provisions of the statute that Congress wrote and not distorting the statute's text for the mere sake of avoiding a greater issue, the Court could not avert the collision of the statute and the Constitution.

In the end, whether you agree with the Court’s conclusion or not, it just isn’t correct or fair to call the Court’s mode of analysis “activist.” The Court's mode of analysis is classic originalism